Flu fear for Batson claim?

Fear of flu has abated, but it might have been a factor in a successful Batson strike earlier this year.

Frederick J. Smith went on trial in early January in Richmond federal district court on marijuana and firearm charges. The prosecution sought to exclude two black jurors, one because the juror was unemployed, and the other, because “she was allegedly coughing, sweating and sniffling,” according to the account in U.S. v. Smith, handed down Dec. 18 by the 4th U.S. Circuit Court of Appeals. The trial judge approved these all-too-common conditions as race neutral bases for the juror strikes.

Smith was only guessing as to whether other jurors, white or black, were similarly afflicted by unemployment or by illness, the panel said in its unpublished per curiam opinion. Without concrete comparisons to point to, his Batson challenge failed.
By Deborah Elkins